Bad ballot design changed Florida’s 2018 election. Why does this keep happening?

Michele Myers did a double take. Pen down, having finished marking her nine-page ballot, she skimmed the printed list of candidates she planned to vote for. All had been checked off — except for the U.S. House and Senate.

“How could I have missed that?” the 44-year-old wondered, looking at her District 22 ballot in Coral Springs.

She flipped back to the front, finding the two races tucked away underneath the ballot instructions on the first page. She thought nothing of it until she saw a headline in the Orlando Sentinel: “Could Broward ballot design have cost Florida’s Senate race 24,000 votes?”

“I guess it didn’t occur to me that other people wouldn’t catch [their] mistake,” Myers said. “Why bother going if you don’t know who you’re going to vote for?”

But in the days following the election, it became apparent that many had indeed left the Senate race blank, sparking a debate as to whether poor ballot design may have been the reason. The problem — shades of the 2000 recount, when a confusing butterfly ballot in Palm Beach County likely cost Al Gore the presidency — may have cost Democratic incumbent Bill Nelson his U.S. Senate seat, and shows that nearly 20 years later, Florida still has trouble designing a ballot.

“People look to the right of the instructions for the contest,” said Lawrence Norden, deputy director of the Brennan Center’s Democracy Program. “It’s not surprising they wouldn’t see the Senate race down in the left.”

Undervotes

In the U.S. Senate race, Broward County actually logged more than 30,000 undervotes, ballots in which voters leave a race blank. That was well over any other county statewide. The contrast of votes for Senate vs. total ballots cast in Broward was highest in Congressional District 24, where 1 in 10 voters did not cast a vote in the Senate race, according to a Herald analysis of election data. Nelson lost to Republican Rick Scott by just 10,033 votes statewide.

The reason is likely the design of Broward’s ballot, according to experts who reviewed sample ballots obtained by the Miami Herald. By placing races beneath the instructions, Broward committed a known design sin, making it likely that people who skip over the instructions wouldn’t see the races.

While most Broward ballots had two races sitting under the instructions, voters in District 24 — where Democratic incumbent Rep. Frederica Wilson ran unopposed and wasn’t on the ballot — saw (or didn’t see) only the Senate contest positioned there, copies of Broward’s ballot designs obtained by the Herald show.

In an interview shortly before he left office, Nelson wouldn’t explicitly say that a ballot design issue cost him the election, but he hinted at it.

“You ought to get the experts to tell you, but I can tell you that basically I carried African-American precincts close to 90 percent,” Nelson said, a reference to Wilson’s 24th Congressional District, which in Broward is home to 15,000 black voters. “Overall, everything in Broward County I carried almost 70 percent of the vote. You do the math, and I’ll let you come to your own conclusion.”

Bad Design

While there’s no definitive way to deduce whether poor ballot design led to an undervote, sudden spikes can indicate issues with design, said Whitney Quesenbery, co-director for the Center for Civic Design, a nonprofit that researches best practices for ballot design to ensure ease of use for voters.

The 2018 midterm is far from the first ballot design controversy South Florida has faced. Florida elections were made infamous with the 2000 butterfly ballot scandal in Palm Beach County, where critics say poor design cost Gore the election, sending votes intended for him to Reform Party candidate Pat Buchanan.

National reform followed, with Congress passing the Help America Vote Act to invest in new voting systems and create the U.S. Election Assistance Commission, charged with helping states improve election administration. Florida also passed legislation aimed at curtailing future controversies. The Legislature started providing funding for better voting systems and restricted counties to using only touchscreen and scanned paper ballot machines. It also banned the punch-card ballot that resulted in the ill-reputed “hanging chads” that led to questions of voter intent.

The legislation, the Florida Election Reform Act of 2001, also required the Department of State to adopt rules for a uniform ballot design for primaries and general elections. But as they are now, the rules dictate elements like font size and color, leaving the majority of the design to supervisors of elections.

Fixing It

In 2004, Sarasota County’s placement of a congressional race on an electronic voting screen caused the percent of people not voting for a candidate to spike to 13 percent. In that race, the two-candidate congressional race was placed above the multi-candidate governor’s race in one screen view.

“Three strikes — you’ve had Palm Beach, Sarasota and Broward,” Quesenbery said. “Now is the time to say ‘You have a problem, let’s fix it.’ ”

Though Florida already has a statute requiring counties to report overvotes and undervotes to the state, it only looks at that within the confines of the presidential race or the governor’s race. The report on findings for the 2018 general election, released in late January, found no evidence of poor ballot design confusing voters. But that analysis didn’t consider the impact of ballot design on overvotes and undervotes in the Senate race, only the governor’s.

Placement of contests under the ballot instructions isn’t unique to Broward. It’s a problem that’s been seen in other counties and other states, which have since put measures in place to prevent it.

In 2009, King County, home to Seattle, Washington, found itself dealing with the same design faux pas. A property tax state ballot initiative went largely ignored, yielding upwards of 40,000 undervotes. The question was posed at the bottom left-hand corner of the ballot, directly beneath the ballot instructions.

Although the initiative failed with a comfortable margin, mitigating the potential impact of those lost votes, Washington state lawmakers reacted, proposing and passing legislation that required the voter instructions to be clearly separated from the beginning of the voting contests.

Washington State Rep. Larry Springer, who co-sponsored the legislation, said that even though lawmakers couldn’t be certain the ballot design caused the undervotes, they wanted to take action to prevent future issues. Since its passage, he can’t remember another instance of undervotes because of questionable placement of races near the ballot instructions.

Washington counties still design their own ballots without review by the state, he said, but are required to have some distinct separation of the instructions from contests.

“It was a recognition that we don’t want any issue to potentially interfere with people’s ability to fill out a ballot and vote for everything on it,” Springer said. “I’d just encourage my colleagues in Florida to take a good close look at what we did here. It works, and it’s pretty easy to fix.”

Florida Law

In Florida, statewide races are generally settled with slimmer margins than in Washington state, meaning ballot design issues get amplified and the consequences are more pronounced. During the 2018 Florida recount, the leading candidates in three state races were within 0.5 percent of each other, the margin for a machine recount. Given Florida’s electoral strength in the presidential election— tied third with New York with 29 Electoral College votes — and its history of close races, it is possible that the 2020 election and future elections could trigger a recount.

This makes 2019 the state Legislature’s best chance to pass legislation before the presidential election, given that any effort to address the issue next year will fall closer to the election and further from the impetus for the change.

One easy way to offset future ballot-design woes would be to strengthen ballot standards, while letting counties retain flexibility to suit the needs of their voters, as Washington state did, and implement ballot-design review, Quesenbery said.

Florida supervisors of elections must adhere to standards set forth in the state’s rules, but are responsible for designing their own ballots, according to state Division of Elections spokesperson Sarah Revell. The department provides a generic template to all counties but doesn’t review designs before use. There is also no requirement that parties or candidates be allowed to review ballot design.

The U.S. Election Assistance Commission cautions against putting contests beneath the ballot instructions, emphasizing that statement in its guidance and saying that “test voters often overlooked races located immediately beneath vertical instructions.” But Florida’s current ballot-design rules do not prohibit counties from placing contests underneath the instructions.

Thomas Hicks, chairman of the EAC, said he recommends that all supervisors of elections look at the commission’s guidelines when creating their ballots, but those are recommended best practices and it is up to states to impose stricter rules as they see fit.

“It’s unfortunate that ballot design is still coming up” as a problem, he said.

-- This story was written by Caitlin Ostroff and David Smiley. Miami Herald staff writers Sarah Blaskey and Kyra Gurney, and McClatchy DC reporter Alex Daugherty contributed to this report. This project was produced with the assistance of a grant from the Solutions Journalism Network.